Shuler v. Sec'y, Dep't of Corr.

• Decision Date: 20 June 2012
• Docket Number: CASE NO: 8:12-cv-126-T-30TGW
• Parties: ANTIONNE LAMAR SHULER, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

ANTIONNE LAMAR SHULER, Petitioner,

v.SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

CASE NO: 8:12-cv-126-T-30TGW

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Date: June 20, 2012

ORDER

Antionne Shuler (hereinafter "Petitioner or "Shuler"), an inmate in the Florida penal system proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. 1). Shuler is challenging his conviction for lewd and lascivious battery. (Dkt. 1). The Court has considered the petition, Respondents' response (Dkt. 7), and Shuler's reply (Dkt. 12). Upon review, the Court determines that the petition must be denied because the claims of ineffective assistance of counsel are without merit.

BACKGROUND

On November 1, 2007, Shuler was found guilty by a jury of one count of lewd and lascivious battery. (Dkt. 1). Shuler was sentenced to the statutory minimum of twenty years in prison followed by ten years of sex offender probation. (Dkt. 1). Shuler appealed. It was denied without written opinion. Shuler v. State, 3 So. 3d 330 (Fla. 2d DCA 2009).

Shuler then filed a Rule 3.850 motion for post-conviction relief claiming his attorney was ineffective for failing to object to (1) hearsay evidence of two witnesses, Michael James and Jason Williams; and (2) improper comments made by the prosecutors during closing arguments. (Appendix, Exh. 7). Following an evidentiary hearing, the state court denied the Petitioner's motion for post-conviction relief. Shuler appealed. The state appellate court affirmed the conviction per curium without written opinion. (Westlaw cite unavailable see Dkt. 1, Exh. D.) Petitioner then filed a timely petition for writ of habeas corpus with this Court under 28 U.S.C. § 2254 raising the same grounds he raised in his post-conviction motion. (Dkt. 1)

STANDARD OF REVIEW

Because the Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA "establishes a more deferential standard of review of state habeas judgments, " Fugate v. Head, 261 F.3d 1206, 1214 (11th Cir. 2001), in order to "prevent federal habeas 'retrials' and to ensure that state court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693; see also Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (habeas court's standard for evaluating state-court ruling is highly deferential, which demands that state court decisions be given the benefit of the doubt).

According to 28 U.S.C. § 2254(a) "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgement of a Statecourt only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Where a state court initially considers the issues raised in the petition and enters a decision on the merits, 28 U.S.C. § 2254(d) governs the review of those claims. See Penry v. Johnson, 532 U.S. at 792; Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003).

Pursuant to AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in a state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. §2254(d); Prince v. Vincent, 538 U.S.C. 634, 638-639 (2003); Clark v. Crosby, 335 F.3d 1303, 1308 (11th Cir. 2003); Harrell v. Butterworth, 251 F. 3d 926, 930 (11th Cir. 2001). When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state adjudicated the claim on the merits. Harrignton v. Richter, 131 S.Ct. 770, 784-85 (2011). Even where a state court denies an application for post-conviction relief without written opinion, in this circuit that decision is entitled to the same deference as if the state court had entered written findings to support its decision. See Wright v. Sec. Dept. of Corrs., 278 F.3d 1245, 1255 (11th Cir. 2002). Inaddition, this court must presume that the state's factual findings were correct, and the Petitioner "shall have the burden of rebutting the findings by clear and convincing evidence." 28 U.S.C. 2254(e)(1); Henderson, 353 F.3d at 890-91.

INEFFECTIVE ASSISTANCE OF COUNSEL

The standard to determine whether the right to effective assistance of counsel has been violated is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). Counsel is presumed competent to assist a defendant; the burden is on the petitioner to demonstrate the denial of the effective assistance of counsel. United States v. Cronic, 466 U.S. 648, 658 (1984). To vacate the conviction, the petitioner must show "by a preponderance of competent evidence," Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000), that (1) counsel's performance fell below an objective standard of reasonable professional assistance and (2) Defendant was prejudiced by the deficient performance. Strickland, 466 U.S. 668 at 687, 694.

To satisfy the prejudice prong under Strickland, the accused must establish that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "

DISCUSSION

Petitioner asserts two claims of ineffective assistance of counsel in his petition. The Petitioner claims his counsel was ineffective because his attorney failed to object to (1) thehearsay evidence of two witness, Michael James and Jason Williams; and (2) improper comments made by the prosecutor during closing arguments.

Ground One: Ineffective assistance of counsel for failing to object to the testimony of Michael James and Jason Williams.

Shuler contends that his attorney should have objected to the testimony of both witnesses as hearsay when they testified that (1)Shuler told them he had engaged in sexual conduct with the victim; and (2) the victim told them she had engaged in sexual conduct with Shuler. This contention is without merit.

First, the witnesses' testimony about Shuler's statements fall within one of the well-defined exceptions to the hearsay rule under Florida law. Hearsay is admissible when it is "[a] statement that is offered against the party and is the party's own statement in either an individual or representative capacity[.]" Fla. Stat. § 90.803(18)(a). But Shuler contends his attorney still should have objected to the statements because they are "hearsay in the ultimate sense." This argument has no merit. "Trial counsel [cannot] be deemed ineffective for failing to raise a futile hearsay objection." Hamner v. Deputy Sec'y of Florida Dept. of Corr., 438 F. App'x 875, 880 (11th Cir. 2011) (citing Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir.1990) ("Counsel cannot be labeled ineffective for failing to raise issues which have no merit.")). Therefore, Petitioner fails to show that trial counsel's performance was deficient for failing to object to the statements from Michael James and Jason Williams pertaining to the Petitioner's own statements.

Second, Shuler argues counsel was ineffective because he failed to object to the testimony of Michael Williams and Jason Williams pertaining to their conversations with the victim. Under Florida law "there is no question that evidence of the prior consistent statements of a witness is inadmissible because it is an impermissible-and probably hearsay-attempt to bolster the credibility of trial testimony." Reyes v. State, 580 So. 2d 309, 310 (Fla. Dist. Ct. App. 1991) (citing Van Gallon v. State, 50 So.2d 882 (Fla.1951); Custer v. State, 159 Fla. 574, 34 So.2d 100 (1947); Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979). See generally Kopko v. State, 577 So.2d 956, 960 n. 9 (Fla. 5th DCA 1991)). However, the statements offered as testimony were believed by counsel to be inconsistent statements of the victim which he allowed to come in to discredit the victim's testimony¹ . The state post-conviction court, after holding a hearing on Shuler's claims, stated:

[counsel] testified that he had strategic reasons for not objecting to such hearsay statements. Specifically, counsel testified that his strategy was to point out the inconsistencies between each accounting because "everybody had a different version of the events, that's how I was challenging the accusation itself." [Counsel] testified that his strategy was to discredit the testimony because it "was so outlandish and ridiculous that it lacked credibility." It is well settled that reasonable strategic or tactical decisions by counsel 'do not justify post conviction relief' and should not be second guessed. Morever counsel's performance should be given 'great deference' in light of the strong presumption that such performance was not ineffective. In the instant action, a review of the trial testimonies of James and Williams does reveal inconsistencies (i.e whether the victim was "lured" onto the back porch while taking out the trash or came to the Defendants home voluntarily, and whether the sex occurred on the porch or in some "back room" of the house. Accordingly, and finding that trial counsel's decision not to object to the hearsay included in the testimonies of James and Williams was a reasonablestrategic one, the Court denies the Defendant's claims for relief under Ground One. (Dkt. 1, Exh. C, pp. 3-4).

This Court's role is to evaluate whether the state post-conviction court adjudicated the...